The only thing more stressful than a divorce is having to go back to court, to enforce the divorce order that your judge already handed down. (As if the first time wasn’t enough, right?)
Unfortunately, that’s exactly what some people have to do.
Whether you like them or not, the terms of your divorce are not optional. California courts will expect you to obey them, and failure to do so can result in some fairly significant financial and/or legal consequences—including a charge for contempt of court.
Here’s what you need to know about contempt of court in California, and what the Maples team can do to help you navigate these serious claims.
Contempt of Court: 101
Contempt of court occurs when someone willfully or intentionally refuses to comply with a court order. This is a criminal charge (meaning that it isn’t handled by civil courts) which can result in steep fines, and—yes—even jail time.
Before you run out and immediately call foul on your ex for screwing something up, though, take a step back and consider whether this hefty charge is really necessary.
In our experience, most non-compliance comes down to a simple misunderstanding—maybe the order was vague, or a certain requirement got overlooked. These errors can usually be figured out without going to court, and certainly without needing to charge someone with contempt.
For contempt to be appropriate in divorce, the level of defiance has to be fairly significant, and/or the subject matter quite serious. (Meaning that a dispute over pet custody or grandma’s heirloom silver likely won’t cut it.)
Examples of situations where contempt might be appropriate include:
If one of these scenarios sounds familiar to you, then you may be able to file for contempt, so long as you meet the elements.
Elements of Contempt of Court
A charge of contempt commences when someone files an “Affidavit for Contempt.” However, you won’t get very far in this process unless you also have all of the right elements.
In California, these elements require you to provide proof that:
There was a valid court order in place. In addition, the terms must be clear; California courts are unlikely to punish someone over a vague or poorly worded order.
The accused knew about the court order. A quick text won’t cut it here; instead, the accused must have received notice via proper service.
The accused willfully violated the court order. This element can be a bit tricky, but usually requires some sort of purposeful refusal to comply—meaning an accidental oversight or misunderstanding won’t be enough. Here, the accused knew about the obligation, and still refused to comply.
A claim of contempt that can’t check all these boxes is unlikely to be successful in California court.
Rights of the Accused
To protect the rights of the accused, California legislatures have outlined certain due process rights for those who have been charged with contempt.
In layman’s terms, “due process” is basically just fancy legal jargon that refers to a system of rules and rights that protect people who have been charged with a crime. Due process ensures that whatever legal process follows is done correctly, and that someone isn’t unfairly charged or convicted.
Those who are charged with contempt of court in California, also enjoy these due process protections. Some of which include:
The right to be notified of the charges against you. This notice must have been done via proper service; a text or casual email won’t cut it.
The right to have representation. Every person has the right to an attorney. If an accused can’t afford one, then the state is obligated to provide one for you.
The right to a hearing. California residents have the right to be present when charges are brought against them. At this time, they have the right to present their defense, and to cross examine any witnesses brought against them.
The right to a jury trial. Since contempt is a criminal charge, in some situations, an accused may even have the right to a trial by jury (although, the law is a little vague on exactly when this would be appropriate).
The right to have the charges dismissed, IF their accuser can’t meet their burden of proof.
Consequences of Contempt of Court
If a California judge upholds a charge of contempt, then the penalties will vary, depending on what terms of the divorce order were violated. However, some of these punishments might include:
A $1,000 fine;
Mandatory community service;
The seizure of assets;
Suspension of licenses;
Liens on property; and even,
Five days of jail time for each instance of contempt.
These are just some of the potential consequences for first time offenses. In California, the punishments for contempt of court will increase in severity, if convicted again. And even more for third time convictions, so it’s not something you want to mess around with.
At the end of the day, however, the ultimate goal of contempt is to pressure another party into complying with a valid court order, and you don’t always have to use contempt to do that.
To find out more about enforcing divorce orders in California, speak to your family law attorney today about your options.
Do You Have More Questions About Contempt of Court in California?
While contempt of court is a less commonly used method of enforcement, it’s still a possibility—especially in cases of extreme and repeated instances of noncompliance. And whether you need help fighting this charge, or pursuing it, you’ll need an experienced family law attorney on your side.
If you have more questions about contempt of court in California, and how it will work in your situation, we want to hear from you. Call Maples Family Law today at (209) 989-4425, or get in touch online, and let us help you navigate this important issue.
If you’re like most parents going through a divorce in Stockton, you want what’s best for your children – and that definitely includes child custody.
But before you hire a child custody attorney, you need to ask some questions to make sure you’re working with the best lawyer for your children’s needs. These three questions to ask divorce attorneys about child custody will get you started.
3 Questions to Ask Your Divorce Attorney About Child Custody
While every case is different, and you’ll want to ask your lawyer case-specific questions, these three general questions will tell you a lot about the attorney you’re talking to.
#1: Do we have to go to court over custody?
Your attorney will need to know more about your situation – including whether you and your spouse are likely to be able to reach agreements together about your kids – before he or she can answer this question. The short answer is that you may not have to ask the judge to decide what happens with your children, provided that you and your soon-to-be ex-spouse can work out a fair agreement that’s in the kids’ best interest on your own.
#2: How hard is it to change a court order?
Ideally, you’ll be able to reach an agreement on child custody with your spouse before the judge in your case issues an order – because they’re not always easy to change. Changing a court order will require you to go to court, and you’ll have to show that there’s been a significant change in circumstances that make the old order unreasonable now.
#3: What if my spouse and I can’t reach an agreement?
A good attorney can help you reach an agreement with your spouse when it comes to child custody. If you two can’t agree, your lawyer might suggest divorce mediation – and if that doesn’t work, or if it’s not an option, your lawyer must be willing to fight hard for what’s best for you and your kids, even if it means going to court and hashing things out in front of the judge.
How Child Custody Works in California
There are two types of custody in California: legal and physical. Legal custody is the right of parents to make decisions about their kids’ health, education and welfare. Physical custody is what determines where the children will reside.
For most families, the best possible option is for the parents to work out an agreement that benefits the whole family. Parents know their children best – and they know what will keep their children healthiest and happiest. It can be incredibly hard to negotiate a child custody agreement when each parent is trying to “win,” but often, it becomes easier when both parents are focusing on what’s best for the children.
Do You Need Help With Child Custody?
If you need help with child custody, our firm is here for you.
Call us at (209) 546-6246 for a divorce case review. You’ll talk to an experienced Stockton divorce lawyer who can give you the advice you need to begin moving forward.
If you’re like many people, you’re wondering, “Can my spouse make me pay for the cost of a divorce?”
In fact, a lot of people – particularly those with a non-working spouse or one who makes far less than the other – ask us the same question.
Can My Spouse Make Me Pay for the Cost of Divorce?
In some cases, the court can order you to pay the cost of divorce for your spouse, but it’s not always reasonable. Sometimes one spouse asks the court for a “need-based fee award,” which is the primary option for most people. In other cases, the court orders one party to pay the other’s legal fees as a type of penalty.
What is a Need-Based Fee Award?
Under California law, the courts are allowed to order one party to pay for the other’s legal fees during divorce. The law says:
“In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.”
In order to make this determination, the court has to look at each party’s ability to pay, which includes each person’s assets, current income, investments and more. The court will limit the amount to what’s reasonably necessary to reach a fair, equitable settlement.
Courts can also award reasonable costs related to the case, such as those that pay for accountants, appraisers and other experts.
If your spouse has applied for a need-based fee award, your attorney will help preserve your rights during your divorce.
When the Courts Order One Party to Pay the Cost of Divorce as a Penalty
The court’s primary interest in a divorce case – other than looking out for the best interests of the children, if you have them – is to get the proceeding over with as quickly and simply as possible. Sometimes, though, one spouse tries to prolong litigation in an effort to “wear out” the other spouse or ends up trying to use the legal system as a means toward revenge.
When that happens, that party’s legal fees go up with every frivolous request or document filed with the court – and it’s not fair to them at all. Sometimes in situations like these, courts order the other party to pay court costs and legal fees (or at least a portion of them). It’s a way of punishing the party that’s acting in bad faith as well as helping the party who’s not doing anything wrong. It’s also an incentive to make sure you’re not the one acting in bad faith.
Is Your Spouse Demanding You Pay for the Cost of Divorce?
If your spouse is demanding that you pay for your divorce, or if he or she is unnecessarily dragging out the case, you may want to call us at (209)546-6870 to schedule a consultation with California divorce attorney Anna Maples today. We’ll ask you questions about your case and start building a strategy that gets you the best possible outcome.
As family law attorneys practicing in Stockton, we help parents from all walks of life through the difficulties of divorce. Many of our clients need help with child custody, which can be one of the toughest parts; both parents want what’s best for their kids, but they often don’t see eye-to-eye on what that is.
What is a Parenting Plan?
A parenting plan, which is also called a custody and visitation agreement, is a written agreement between two parents that describes time-share and decision-making.
What is Time-Share in a Parenting Plan?
Time-share is a specific schedule that outlines when the children will be with each parent. For example, one parent may pick up the kids from school every other Friday and return them to school on Monday morning; one parent might pick up the kids from school each day except Wednesdays, when the other parent does it.
What is Decision-Making in a Parenting Plan?
Decision-making is a specific outline that shows how each parent will make decisions about what’s best for their children, including health, education, and general welfare.
Is a Parenting Plan Legally Binding in California?
Once you and your spouse have developed a parenting plan and signed it, the judge will sign it (as long as it’s fair and serves the kids’ best interests rather than yours). It then becomes a court order.
How to Develop an Effective (and Good) Parenting Plan
It can be very difficult to work with your spouse, especially when you’re in the middle of a divorce. However, your children need you to advocate for them—and they need both parents to provide their love, support, and time.
Your parenting plan should deal with:
Physical custody, such as where your kids will spend each night, where they’ll be during the holidays, and which parent is in charge at which times
How the kids will travel between parents
Which parent gets the kids on school breaks, including the summer
Legal custody, including which decisions each parent can make alone and which decisions need to be made together
Schools and child care
Religion
Medical and dental care
Emergency care
Special Considerations When You’re Developing a Parenting Plan
When you’re outlining your parenting plan, make sure it meets their needs. Your lawyer will advise you to consider:
Your kids’ specific activities. Do they participate in sports leagues, piano lessons, or community activities?
Your kids need a regular schedule so they can depend on it; they’re going through a lot of changes right now, so consistency (where you can provide it) is very important.
Your kids’ needs. Every child is different, which is why it’s so important for you and your spouse to figure out what’s best for yours together.
Your parenting plan can also include stipulations that say each of you is entitled to:
Information about the kids
Access to the kids through phone calls, Skype or FaceTime
Access to the kids’ school and medical records
Access to each other’s phone numbers, addresses, and other contact information so you can communicate about the children
A good parenting plan is specific enough that you both understand your responsibilities and can both stick to it. However, you should also build in some flexibility; what if one of your kids is sick, for example, and doesn’t feel like traveling to your ex’s house for the day? What if a special school event comes up, or what if Grandma and Grandpa come to town (or you go to Grandma and Grandpa’s)? Building in room for special circumstances will make sticking to your parenting plan much easier, and when it’s easier for you, it’s easier on your children.
Do You Need to Talk to a Lawyer About Developing a Parenting Plan?
We’ve helped many people through divorce, and we can help you, too. As family law attorneys serving Stockton and the surrounding communities, we have extensive experience dealing with parenting plans and other divorce issues.
Call us at 209-910-9865 to let us know what you’re going through. We’ll begin developing a strategy that gets you and your children the best possible outcome—and we’ll give you all the support you need during this difficult time.
